NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Division, BRAC, on the Dayton Union Railway Company, that:
OPINION OF BOARD: This is a discipline case which we review as an appellate body to determine whether: (1) Claimant was afforded due process; (2) there is substantial evidence supporting a finding of guilt, in whole or in part; and (3) discipline, if assessed, is reasonable.
The instant case can be disposed of by resolving whether Claimant was afforded due process.
Carrier appointed as hearing officer one G. A. Street, Assistant Superintendent, Penn Central Company. After the hearing Street made no report, made no findings, made no decision.
The transcript of the hearing discloses numerous conflicts in the testimony of the witnesses. Only the hearing officer who observed the demeanor of the witnesses was qualified to make findings of credibility under such circumstances. See our Award No. 13180 in which we held:
Other apposite Awards are: Third Division Award No. 14031 and Second Division Award No. 3266.
For the foregoing reasons we find that Claimant was: (1) not afforded due process; and (2) the charge against Claimant was not sustained. We, therefore are compelled to sustain the Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
Claim sustained with Claimant to be made whole as prescribed in Rule 9 (d) of the Schedule Agreement.
This claim was sustained on a finding by the majority that the claimant was denied "due process" in that the trial officer, Mr. Streett, "made no report, made no findings, made no decision."
The concept of "due" process;; advanced by the referee is wholly inapplicable. The "due process" clause of the Federal constitution is a restriction on actions of the government against its citizens. That clause "adds nothing to the rights of one citizen as against another", American jurisprudence, 2d, Vol. 16, Section 544, and only applies to acts by governmental authorities. To apply such a concept in the construction of a collective agreement defining the carriers right to discipline employees is wholly erroneous. The same authority just cited states "it is the established general rule that the provisions of the due process clause . . are inhibitions on the power of government . . . not upon freedom of action of private persons" Section 557. In the absence of a contractual guarantee of due process no such right exists in this case. The question is whether claimant had a fair and impartial investigation.
The conclusion that the trial officer made no findings or decision is pure assumption, and is entirely without support in the record. The only reference on this point is found at page ten (10) of the Employees Ex-pane Submission where they state that Mr. Streett acted as trial officer and "was not heard from thereafter." It may be true that Mr. Streett reported no findings or decisions to the employees. However, it is wholly unjustifiable for the majority to assume that he was not involved in evaluating the record and making the decision to apply discipline, of which formal notice was used by Mr. Yand. The fact is that he was so involved. Both he and Mr. Yand as the record shows were officers of the Dayton Union Railway and were in daily contact. It would require strong evidence to overcome the obvious assumption that they would discuss the case before discipline was applied.
To impose a requirement that the trial officer make formal report, findings or decision is to go far beyond the agreement. It requires a "fair and impartial investigation" and that "a decision will be rendered within ten (10) days after the hearing." It is wholly silent on the procedures within the Company for review of the trial record and decision as to discipline. Many awards have recognized that the procedure followed here is perfectly proper. See pages 11 to 12 in the carrier's submission. The awards cited by the majority, the two earliest of which were by the same referee are erroneous and contrary to previous principles established by this Board.
In the two previous awards by the same referee there was at least some evidence that the hearing officer had not evaluated the record. No such evidence existed here. However, both those awards are erroneous as shown in the dissents to them. In addition in one of those awards the referee also found that there was no substantial evidence to support the discipline.
Award 14031 by Referee Hamilton likewise went far beyond claimants contractual rights and was based on the same erroneous assumptions as Referee Dorsey's previous Awards.